LAWS(MPH)-2004-3-108

ORIENTAL INSURANCE CO. LTD. Vs. GYATRI

Decided On March 16, 2004
ORIENTAL INSURANCE CO. LTD. Appellant
V/S
GYATRI Respondents

JUDGEMENT

(1.) UNDER section 173 of the Motor Vehicle Act, the appellant-Insurance company has challenged the award dated 7.3.2003, passed by Motor Accident Claims Tribunal, Chhindwara, filed on behalf of respondents No. 1 to 4, which was registered as Claim Case No. 57/2001. Deceased Manmohan Sharma, the forest guard aged 55 years, is stated to have met his death on 3.2.2001 by fall, near Kundali barrier, from the bus, bearing No. MP049-E/0009, in which, he was occupying the seat as a passenger, on account of sudden rash and negligent driving of bus by driver Rajaram, (respondent No. 5), while the deceased was alighting the bus at the stoppage. Respondent Ravi Shankar is admittedly the owner of the aforesaid bus. Keeping in view the monthly income as stated in para 16 of the award, the annual dependency is calculated at the rate of Rs. 36,000/-, and then, on applying the multiplier of 11, the compensation amount of Rs. 3,96,000/- is arrived at.

(2.) GRANT of award is being challenged on the ground that the driver had no valid driving licence at the time of accident and in this regard, the appellant's application moved under order 26, rule 4, read with section 151 of CPC is erroneously rejected by the Tribunal, whereas driver and owner were being proceeded ex-parte after filing of their written statements and that the Tribunal has further erred in not deducting the amount of family pension, while calculating the amount of dependency. The respondent No. 1 to 4 have filed cross-objections under order 41, rule 22 of the CrPC, seeking enhancement of the quantum of award to the claimed amount of Rs. 8,12,000/-.

(3.) NOW on examining the facts of this case in the light of aforesaid legal position, it is noted that the appellant-insurer adduced no evidence in this case to prove the fact of non-possession of valid licence by the driver, and in the application moved on behalf of appellant-insurer under Order 26 Rule 4 read with section 151 of the CPC, for issuance of commission to record the statement of RTO Jabalpur, which is rejected by the Tribunal on 14.2.1993, it is found stated that the driver Rajaram (respondent No. 5)-non-applicant No.1, had a licence No. A/796/JBP/90 batch No. 25126, therefore, even if it is held that the learned Tribunal has erroneously rejected the appellant's-insurer's aforesaid application or that the licence possessed by driver Rajaram was not genuine but fake, in the absence of any evidence to prove that the owner-respondent No. 6/non-applicant No. 2, was aware or had noticed the licence being fake, still he permitted driver Rajaram, to drive the vehicle, the appellant-insurer cannot escape the liability to pay the compensation to the respondents No. 1 to 4/claimants No. 1 to 4, in the light of the aforesaid legal position, because in this case, the appellant-insurer has led no evidence.